General Damages-Pain

In our last post we discussed suffering. This post discusses pain. We all know what pain is having learned by toddler-hood. In a personal injury case the general damage component of pain is readily understood by the jury. Pain does present problems though. Problems arise in dealing with jurors who have pain,  describing pain, and  asking for money for pain.

Jurors who have Pain. During jury selection when we learn a juror is in pain we acknowledge and listen to their feelings about pain. We identify other jurors in pain. We acknowledge and discuss their pain experiences. If the juror has the attitude that is insensitive to pain we look for a challenge for cause. If there is no challenge for cause we slot this juror for a peremptory challenge.

Describing Pain. To prove pain damages pain must be discussed. Ideally this is done through witnesses other then plaintiff. Lay witnesses are best. A lay witness who has known plaintiff before and after the traumatic injury is ideal for discussing observations of no pain behavior before trauma and observations of pain behavior after the trauma. As always the witness speaks with power language using nouns and verbs, avoiding adjectives and adverbs. Have the witness speak in a way that a picture forms in the minds of the listeners (the jury).

Plaintiff must testify. Care must be taken so plaintiff does not overstate and thereby be seen as a whiner. Again nouns and verbs as in this activity causes mid back pain rather then this activity causes incredible mid back pain. We like to use the 0 to 10 scale often seen in medical records. 0 being no pain and 10 being as high as one can imagine. (Rarely is there a pain level 10). Have plaintiff testify to the pain level before the trauma. Then have her rate the 0 to 10 magnitude during the acute phase of the injury. Then go to today and have her rate a good day. Then have her rate the level in can still get to. At all times plaintiff  is honest and true to herself.

Often defense has conducted an IME. The IME report which the doctor will be using to testify should be discussed  during cross on what the doctor wrote about plaintiff’s pain level. In this way the jury hears about plaintiff’s pain through defendant’s IME doctor. Also elicit findings of trigger point tenderness and spasm which are badges of legitimate pain.

Asking for Pain Damages. When asking for pain damages the lawyer must first determine if he wants to lump all general damages together and  make a lump sum ask or segregate each element of general damage and  make an item per item ask. Either way care must be taken on the amount of the ask. Never should the ask be too much. This alone is a complex problem. We have a sense of fairness in each case and we stay within our fairness limit. The plaintiff graveyard is littered with plaintiff’s who ask too much. When this happens the jury reacts by giving minimal general damages.

On making the ask be sure to remind the jury the pain is permanent. If we cannot prove permanence we drastically reduce the ask. When we have permanence we get a life expectancy instruction. This allows us to make the ask and then use the life expectancy instruction to demonstrate the reasonableness of the ask as in the ask amount translates to x amount per year, per month, per day and/or per hour. Never begin with the life expectancy instruction and build a per diem argument from there as in if you compensate plaintiff x amount per hour x number of waking hours in a day x number of days in a year x number of life expectancy years you should provide a total of x amount. This borders on a improper per diem argument and defense will kill the argument.

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2 Responses to “General Damages-Pain”

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